Why deputy governors can't simply take over as county chiefs

Wednesday March 18 2020

Summary

Prof Kindiki notes that, by being barred from stepping into office, a governor does not cease to hold office since none of the instances in Articles 181 and 182 of the Constitution have occurred to give rise to a vacancy in the office.

The Deputy Speaker says that such an assumption of office is of no legal consequence unless the substantive governor legitimises the move in writing.

Prof Kindiki noted that, by being barred from stepping into office, a governor does not cease to hold office since none of the instances in Articles 181 and 182 of the Constitution have occurred to give rise to a vacancy in the office.

Article 181 deals with the circumstances under which a governor can be removed from office while Article 182 deals with vacancy in the office of the governor.

LEGAL EFFECT

The Deputy Speaker observed that such an assumption of office is of no legal consequence unless the substantive governor legitimises the move in writing.

He spoke while ruling on whether there is a provision in law for the deputy governor to assume exercise of powers of the office of the governor, where such a governor is arraigned and barred from office, as is the case in Kiambu and Samburu.

Kiambu Deputy Governor James Nyoro declared himself acting governor after Mr Ferdinand Waititu was arraigned over corruption in the award of tenders worth Sh585 million.

Governor Waititu was barred from office last July. Justice Mumbi Ngugi ruled that any governor implicated in a corruption scandal should step aside pending completion of the trial.

In Samburu, Deputy Governor Julius Leseeto declared himself acting governor after his boss, Moses Lenolkulal, was arraigned on graft charges and barred from office.

'CRIME SCENES'

Prof Kindiki said that the order by Justice Ngugi, barring state officers charged with corruption from stepping into office, neither creates a vacancy by removing the governor from office, nor constitutes an absence.

A vacancy or an absence would trigger Article 179(5) of the Constitution, which provides mechanisms for the deputy governor to act as governor.

The Deputy Speaker also warned that assumption of office would run afoul of the constitutional principle of presumption of innocence.

Even though such governors are barred from stepping into their offices, Prof Kindiki said, they continue to hold office, discharge functions and exercise powers under the Constitution, the County Governments Act and any other relevant law.

“The order simply designates such offices as scenes of crime and, therefore, out of bounds for the governor as a suspect, allowing him only supervised access to ensure he has no contact with any prosecution witnesses working there, and generally to prevent the governor from interfering with evidence in the office,” he ruled.

APPOINTMENTS

Prof Kindiki also said a governor who cannot access his office due to a court order has the liberty and discretion to appoint the deputy to act as the substantive governor.

He pointed out, however, that such an appointment cannot be forced on such a deputy.

He added that a governor need not be at the physical location of the county office to perform the functions, or exercise the powers of the office of the governor.